State of New Mexico v. State of Colorado, 12

• Citation: 45 S.Ct. 202,267 U.S. 30,69 L.Ed. 499
• Decision Date: 26 January 1925
• Docket Number: O,No. 12,12
• Parties: STATE OF NEW MEXICO v. STATE OF COLORADO. riginal
• Court: United States Supreme Court

267 U.S. 30

45 S.Ct. 202

69 L.Ed. 499

STATE OF NEW MEXICO

v STATE OF COLORADO.

No. 12, Original.

Argued Dec. 2, 3, 1924.

Decided Jan. 26, 1925.

Messrs. Frank W. Clancy, of Santa Fe, N. M., and O. A. Larrazolo, and Jay Turley, both of Albuquerque, N. M., for the State of New Mexico.

Messrs. Oliver Dean and W. C. Williams, both of Denver, Colo., and Delph

[Argument of Counsel from page 31 intentionally omitted] E. Carpenter and Victor E. Keyes, both of Greeley, Colo., for the State of Colorado.

Mr. Justice SANFORD delivered the opinion of the Court.

This is a suit in equity, within the original jurisdiction of this Court, brought by the State of New Mexico against the State of Colorado, in 1919, to settle a controversy as to the location of their common boundary line. Under the Acts of Congress under which they were admitted into the Union and their respective Constitutions, this is the 37th parallel of north latitude between its intersections with the 103d and 109th meridians of longitude west from Greenwich.¹

The only dispute is as to the location of this line. Different surveys have been made. New Mexico alleges in its bill that the true line is that which was surveyed and marked by Howard B. Carpenter in 1903, and prays that this be decreed to be the boundary. Colorado, in an answer and cross bill, alleges that the true line is that which was surveyed and marked by Ehud N. Darling in 1868, and extended by John J. Major and Levi S. Preston in 1874 and 1900, and prays that this line be decreed to be the boundary, and that, in so far as necessary, it be restored and remarked.

The case has been heard on evidence taken by examiners, supplemented by a stipulation of the parties. The material facts are these: The Territory of New Mexico was established in 1850,² and the Territory of Colorado in 1861.³ Under the Acts of Congress their common boundary was the 37th parallel, between the 103d and 109th meridians.

In 1867 Congress made an appropriation for the 'survey of the thirty-seventh parallel of north latitude, so far as it constitutes the northern boundary of the Territory of New Mexico.'⁴ The Commissioner of the General Land Office employed Ehud N. Darling, a surveyor and astronomer, to make this survey. He made the survey in 1868, and filed his field notes in the Land Office. In accordance with his instructions, he adopted as the northeast corner of New Mexico a stone monument that had been established by Capt. J. N. Macomb, an Army Engineer, in 1859, to mark the intersection of the 37th parallel with the 103d meridian, and, taking this as his beginning point, surveyed and marked the line of the parallel, as determined by astronomical observations and calculations for latitude, westwardly to the 109th meridian, a distance of over 331 miles. As shown by the field notes he established on this line eleven 'astronomical monuments,' with 'mile corners,' usually marked stones, at the end of each mile where the nature of the ground made this possible, otherwise locating the mile corners by triangulation. In 1869 the Commissioner of the General Land Office approved these field notes, and published an official 'Map of the Boundary Line between Colorado & New Mexico an the 37th Parallel North Latitude,' made in conformity to them.

Several years later the Commissioner of the General Land Office employed John J. Major, a surveyor and astronomer, to survey and mark the remaining portion of the southern boundary of the Territory of Colorado, extending along the 37th parallel to the 102d meridian. Major made this survey in 1874, and marked the line of the parallel between the Macomb monument and that meridian. The field notes of this survey were filed in the Land Office and approved by the Commissioner.

In 1876 the State of Colorado was admitted into the Union, with the same southern boundary line as that of the Territory.⁵

Some years later the 103d meridian was established on a line known as the 'Cimarron Meridian,' intersecting the 37th parallel a short distance east of the Macomb monument. Thereafter the United States Surveyor General employed Levi S. Preston, a deputy surveyor, to resurvey and retrace the north boundary of New Mexico between the Macomb monument and the Cimarron meridian. Preston made this survey in 1900, retracing and remarking this portion of the Major line, and established at the intersection of that line and the Cimarron meridian, about two miles east of the Macomb monument, a sandstone corner since known as the Preston monument. The field notes of this resurvey were filed in the office of the Surveyor General and approved by him.

In 1901 the State of Colorado appointed a commissioner to resurvey and remark a portion of its southern boundary line as surveyed and established by Darling, on which one of his astronomical monuments had disappeared and a number of mile corners could not be found.⁶ Both the Territory of New Mexico and the Interior Department were invited to join in this resurvey, but neither did so; and it was made by the Colorado commissioner alone.

In 1902 an examiner of surveys in the General Land Office, on an inspection of about sixty miles of Darling's original line, reported that but few of the corners then remained, and that the line was evidently erroneously established between identified monuments; and the Commissioner urged that the entire southern line of Colorado be resurveyed and reestablished. Thereupon, on the recommendation of the Secretary of the Interior,⁷ Congress made an appropriation for 'the resurvey and reestablishment, on the line of the thirty-seventh parallel of north latitude, of the boundary line between the State of Colorado and the Territories of New Mexico and Oklahoma' between the 102d and 109th meridians.⁸ The Commissioner of the General Land Office employed Howard B. Carpenter, a surveyor and astronomer, to make this resurvey. He was not directed to retrace the lines previously established, but to make an independent survey, and was specifically instructed to 'obliterate' all evidences of the corners and monuments that had been set by Darling. Carpenter completed this resurvey in 1903, and filed his field notes in the Land Office in 1904. These were approved by the Commissioner. Carpenter surveyed an entirely different line from the Darling and Major-Preston lines. His new line commenced on the 109th meridian, at some distance north of the Darling line, and ran for the greater portion of the boundary north of that line, although crossing it shortly before reaching the Macomb monument and running for the remainder of the distance somewhat to the south of the Darling and Major-Preston lines. Taken as a whole, its effect, if established as the boundary, would be to transfer a large strip of territory from Colorado to New Mexico, including the greater portions of one town and two villages, and five post offices. Carpenter established on his new line eight stone astronomical monuments, and mile corners, marked by iron posts, wherever it was practicable; and whenever he found one of Darling's mile corners or astronomical monuments, after noting its location, either destroyed it completely or obliterated the marks upon it.

After the Commissioner's approval of the Carpenter line the General Land Office ceased to recognize the Darling and Major-Preston lines as the boundary between Colorado and New Mexico in so far as related to the public lands, as it had theretofore done, and for a time recognized the Carpenter line as the boundary.

In 1908 Congress passed a Joint Resolution accepting the line of the Carpenter survey 'as the proper location of the thirty-seventh paralled and the true boundary line' between the States of Colorado and Oklahoma and the Territory of New Mexico.⁹ This resolution was, however, vetoed by the President; and no further action was taken by Congress.

After this veto by the President the General Land Office abandoned its recognition of the...